TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 1
THE ULTIMATE CRUEL PUNISHMENT ...................................................................... 3
Methods of execution ............................................................................................ 4
Execution by electrocution .................................................................................... 5
Execution by lethal injection - ramifications beyond US borders.......................... 5
Consent under cruelty - prisoners who drop their appeals ................................... 7
THE UNUSUAL WORLDWIDE BECOMING ROUTINE IN THE USA ....................... 8
Individual state moves to reintroduce the death penalty ........................................ 9
USA AND THE DEATH PENALTY: INTERNATIONAL CONCERN GROWS ........ 10
UN Special Rapporteur’s visit to the USA .......................................................... 10
No reply to Amnesty International’s letter to federal authorities ......................... 12
NON-COMPLIANCE WITH INTERNATIONALLY-AGREED RESTRICTIONS ...... 14
Death penalty against juvenile offenders ............................................................. 14
Executions of the mentally ill or mentally retarded ............................................. 17
INCREASING CONCERN ABOUT FAIRNESS IN CAPITAL CASES ....................... 17
CASES IN 1997 ILLUSTRATING CONCERNS IN CAPITAL PROCEEDINGS ........ 20
Life or death? The question of “future dangerousness” .................................... 25
RIGHTS OF FOREIGN NATIONALS VIOLATED ...................................................... 26
EXTRADITION IN CAPITAL CASES........................................................................... 28
THE RISK OF EXECUTING THE INNOCENT ............................................................ 29
WHAT THE PUBLIC WANT? ....................................................................................... 32
SELECTED STATISTICS ............................................................................................. 34
UNITED STATES OF AMERICA
"A macabre assembly line of death"
Death penalty developments in 19971
INTRODUCTION
“...the death chambers in American prisons have resumed their sad work and the
rhythm seems like that of a macabre assembly line...” 2
The triple execution which began the year heralded what was to become the highest
annual judicial death toll in the USA in over four decades. The evening of 8 January
1997 at the Cummins Unit in Varner, Arkansas, also demonstrated the inescapable cruelty
of the death penalty irrespective of the method used to end the life of the prisoner. Paul
Ruiz, Earl Denton and Kirt Wainwright were killed by lethal injection, the supposedly
“humane” method increasingly preferred in US death chambers. Denton was injected at
around 7pm, followed about an hour later by Ruiz, with both executions said to have
taken about four minutes. Then Kirt Wainwright spent over 45 minutes strapped down
for execution with the needles already inserted in his arms, awaiting news on a
last-minute appeal. The situation had forced prison officials to decide if it would be
more cruel to take him back to his cell and then have to return him to the execution room
if and when the appeal was rejected. When Kirt Wainwright subsequently received his
lethal dose, it reportedly took some 12 minutes for him to die.
This was the second triple execution in the US in the 1990s - with Arkansas the
executing state both times. On this occasion, officials reportedly said that executing all
three prisoners on the same day would be cheaper and less traumatic than having three
separate execution dates; a prison spokeswoman was quoted as saying that “the
emotional toll is so high on everybody, the employees and the inmates”. Amnesty
International agrees: the death penalty is brutalizing to all involved in its application.
By the end of 1997, a total of 74 people had been executed in 17 states, the
highest annual total in the USA since 1955. It brought the number of people executed
across the country since 1977 to 432, of whom 312 have been executed in the 1990s.
At the end of 1997, over 3,300 people remained on death row in 35 states, the highest
death row population in the world.
1
This report covers 1997, but some 1998 details are given if available at time of writing.
2
Vatican Radio, 9 January 1997, referring to Arkansas triple execution.
Amnesty International April 1998
AI Index: AMR 51/20/98
2
Death penalty developments in the USA in 1997
Amnesty International opposes the death penalty unreservedly on the grounds that
it is the ultimate cruel, inhuman and degrading punishment and a violation of the right to
life as proclaimed in the Universal Declaration of Human Rights. In the 50 years since
the adoption of that visionary text, the world has gradually been ridding itself of judicial
executions, with over 100 countries, more than half, now abolitionist in law or practice.
The vast majority of executions worldwide are carried out in a small number of countries;
1997 saw the USA continue its move into this category of nations. Only China, Iran and
Saudi Arabia are known to have executed more prisoners during the year.
Contrary to internationally-agreed safeguards and restrictions on the death
penalty, the US continues to execute mentally ill or mentally retarded prisoners, and to
use the death penalty against child offenders.
Many of those on death row were
sentenced after trials in which they did not receive the quality of legal representation
expected under international standards. Fears are rising that such proceedings, coupled
with the politicization of the death penalty and a narrowing of the opportunity for
appeals, will increase the likelihood of death sentences against people innocent of the
crimes for which they were convicted.
While it is a deeply disturbing thought that among those awaiting execution may
be individuals wrongly convicted, the majority on death row in the USA have undeniably
been involved in brutal crimes against their fellow citizens, crimes which have tragic
ramifications for the families and loved ones of the victims. As an organization
dedicated to the victims and survivors of human rights violations, Amnesty International
would never seek to excuse or belittle the heinousness of these crimes and their impact on
society. But central to fundamental human rights such as the rights to life and freedom
from torture is that they are inalienable: they cannot be taken away even in the most
extreme of circumstances or even if the person has committed the most atrocious of
offences. The international community has recognized this and even ruled out resort to
capital punishment for war crimes and crimes against humanity3. Amnesty International
remains convinced that for the state to kill those it considers to have lost their right to live
achieves nothing but the further brutalization of the society it seeks to protect.
The Eighth Amendment to the US Constitution, added in 1791, prohibits “cruel
and unusual punishments”. In 1958 the US Supreme Court stated that the definition of
‘cruel and unusual punishments’ was not permanently fixed, but instead must draw its
meaning from “the evolving standards of decency that mark the progress of a maturing
3
The United Nations Security Council, of which the USA is a permanent member, has
excluded the use of the death penalty by the two international ad hoc tribunals created to deal with war
crimes in former Yugoslavia and Rwanda.
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
3
society.” 4 In 1997, the US executed more people than in any other year since that
statement.
The cruelty of the death penalty should mean it has no place in society today.
The fact that fewer and fewer countries resort to its use means that, when viewed from a
global perspective, it is becoming an increasingly “unusual” punishment. That it is
becoming more, rather than less, common in the USA is a cause for great concern.
THE ULTIMATE CRUEL PUNISHMENT
During the year, Amnesty International delegations, led by Secretary General Pierre Sané,
witnessed first-hand the reality of death row in the USA. In October, in Ellis 1 Unit in
Huntsville, Texas, which houses some 400 death row inmates, the delegation met three
prisoners, Cesar Fierro, Kenneth
Ransom and Robert Carter. On
leaving the prison, Pierre Sané said:
"We have witnessed how a
deliberate
policy
aimed
at
dehumanizing
prisoners
is
implemented coldly, professionally
and heartlessly. The effect is such
that it has also dehumanized their
keepers. The condemned await their
deaths in rows of tiny cages
reminiscent of the dark ages, their
spirits are slowly broken."
Two Texas death row
inmates who had spent the last two
decades under such circumstances were executed earlier in 1997. Billy Woods, executed
on 14 April, and Clarence Lackey, executed on 20 May, were two of the longest-serving
death row prisoners in the USA. In 1995 Lackey had appealed on the grounds that the
length of time he had spent on death row, to the extent that it was due to delays for which
the courts were responsible, constituted cruel and unusual punishment. In denying his
appeal, the US Supreme Court did not rule on the merits of the case, but noted it as an
important issue which had "potential for far-reaching consequences".
In November 1997, an Amnesty International delegation visiting State
Correctional Institution Greene (SCI Greene) in Waynesburg, Pennsylvania, met with two
4
Trop v. Dulles, 356 U.S. 86, 1958
Amnesty International April 1998
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4
Death penalty developments in the USA in 1997
death row prisoners, Mumia Abu Jamal and Scott Blystone. Blystone told the
delegation of the intense strain of being imprisoned under the sentence of death and
described the process he underwent when prepared for execution in 1995: "They [the
guards] come to your cell, you know you're getting a [death] warrant because they're real
polite. They handcuff you, belt you and shackle your feet. It's silent, you can hear your
heart beating. They take you to death watch - cells surrounded by plexiglass walls so
sound can't get through. There's a camera at the front of the cell that watches you
24-hours a day. You're standing there alive and they're asking you where to send your
body. After surviving a death warrant I felt like I'd lost my soul - it kills part of you."
Pierre Sané described how "death row in Pennsylvania looks and feels like a
morgue. Everything is high-tech, and there is no human being in sight. From the moment
that condemned prisoners arrive, the state tries to kill them slowly, mechanically and
deliberately - first spiritually, and then physically." Mumia Abu Jamal has been in SCI
Greene since January 1995. He told the Amnesty International delegation that “the
intention is always to isolate people.” Amnesty International remains concerned about
aspects of Mumia Abu Jamal’s conviction in 1982 for the murder of a police officer.
Methods of execution
“From hanging to electric chair to lethal injection: how much prettier can you make
it? Yet the prettier it becomes, the uglier it is.” 5
Ignoring the fact that forcing someone to live under sentence of death is cruel and inhuman
treatment, some proponents of the death penalty suggest that the punishment can be made
more acceptable by "modernizing" the method of carrying out the sentence. However,
Amnesty International believes that executing a prisoner by any method is an unacceptable
human rights violation which has no place in society today.
The tendency of some to view one execution method as acceptable and another as
barbaric was illustrated in early 1998. Two members of Congress, a Republican from Florida
and a New York Democrat, hosted - for members of the legislature, journalists and diplomats the showing of a video depicting the execution of four people by stoning in 1992 in Iran.
Saying that seven people had been executed in this way since President Khatami took office
in August 1997, the two said that “...nothing has changed under Khatami’s rule” and
condemned executions by stoning as “savagery” and urged the US administration to bear this
5
Death row prisoner Scott Blystone to Amnesty International delegation in SCI Greene in
November 1997.
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Death penalty developments in the USA in 1997
5
in mind in its relations with Iran. The two failed to comment on the fact that more than 250
people have been executed in the USA since President Clinton took office in 1992.
Amnesty International April 1998
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6
Death penalty developments in the USA in 1997
Execution by electrocution
Four of the 74 executions in the USA in 1997 were carried out by electrocution. One
was that of Pedro Medina, a Cuban refugee with a history of mental illness. As he was
electrocuted in Florida on 25 March, bright orange and blue flames erupted from the
mask covering his face and the chamber filled with dense smoke. Afterwards, state
Attorney General Bob Butterworth appeared to suggest that such botched executions
might serve as a deterrent when he was reported as saying “People who wish to commit
murder, they better not do it in
the state of Florida because
we may have a problem with
the electric chair”.
When
asked whether lethal injection
might be preferable, another
Florida politician said “[lethal
injection] appears to be a
medical procedure. A painless
death is not a punishment.”
In October, the Florida
Supreme Court ruled by a 4-3
vote that the state’s use of its 74-year-old electric chair is not cruel and unusual
punishment, but five of the justices urged that an alternative method of execution be
passed into law. Two warned that if another court ever ruled against the use of the chair,
current death sentences could be at risk of being overturned. They advised that a law
allowing an alternative method of execution (lethal injection) could prevent that kind of
“constitutional train wreck”.
Florida began re-using its electric chair in 1998, with
the executions of Gerald Stano, Leo Jones, Judy Buenoano and Daniel Remata on 23,
24, 30 and 31 March respectively.
Execution by lethal injection - ramifications beyond US borders
The remaining 70 executions carried out in the USA during the year were carried
out by lethal injection 6 , demonstrating how this method has now become the most
favoured in death chambers across the country. However, the United States’ experience
in carrying out executions by lethal injection was not confined to within its borders during
1997. On 28 July the Deputy Interior Minister of Guatemala officially opened his country’s
6
For further information on the use of lethal injection worldwide, see Amnesty International:
Lethal Injection: The medical technology of execution. January 1998. AI Index: ACT 50/01/98
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
7
new lethal injection chamber in Pavón Rehabilitation [sic] Prison, southeast of Guatemala
City7. As a part of the research and preparations for their change from firing squad to lethal
injection, a delegation of Guatemalan prison officials were reported to have visited prisons in
the USA in 1997 in order to inspect US lethal injection chambers.
Amnesty International also received unconfirmed reports that the Government of the
Philippines, which at the time of writing was planning to execute its first prisoner since 1976,
may have recently acquired unspecified equipment from the USA for its new lethal injection
chamber. Furthermore a report in early 1997 quoted the Philippines Director of the Bureau
of Corrections as saying that his government had rejected the use of the electric chair because
it was a "very gory and very barbaric method" and that its executioners, who would now be
using lethal injection, would "probably be sent to the United States for training" 8 . A
non-governmental source in the Philippines told Amnesty International of his belief that the
Director of the Bureau of Corrections had recently visited seven different states in the USA to
look at their lethal injection equipment. In early 1998, a Philippines newspaper reported
that the Director had disclosed that during his visit to the USA, he had "witnessed a "painless"
execution by lethal injection in Texas last year and it looked as if the convict just fell asleep."9
Amnesty International is deeply concerned that the USA, a self-proclaimed leader in
the protection of human rights, is not only expanding its own use of the death penalty, but
appears to have assisted two other countries in learning how “best” to execute their prisoners.
Despite claims that it is a clinically efficient method to kill a human being, even a
lethal injection may not go as smoothly as its proponents would wish. For example, the
execution of Michael Elkins in South Carolina on 13 June 1997 was delayed for 40 minutes
while numerous attempts were made to insert intravenous needles. Because of Elkins’ poor
physical condition, the first needle was finally inserted in his neck (attempts to use his arms,
legs, and feet, were not successful) and the second needle was not used.
Scott Carpenter, a young native American, was executed in Oklahoma on 8 May.
Two minutes after the lethal chemicals began flowing he began to make noises, his stomach
7
The Guatemalan government’s stated intention of introducing lethal injection is to make
executions “more humane” and “modern”, and followed a botched execution by firing squad in 1996,
which was broadcast live on national television in Guatemala. On 10 February 1998, the Guatemalan
authorities carried out the first execution in their new lethal injection chamber. Witnesses described
how the executioners had difficulty finding a vein into which to insert the lethal liquid. Once the
lethal injection was administered, the condemned man took 18 minutes to die. The Human Rights
Procurator said: "I think we all have the obligation to tell what happened: his arms were bleeding
heavily, I think everyone who was there was suffering." The entire execution was broadcast live on
radio and television.
8
Agence France Presse, 28 February 1997
9
Philippine Daily Inquirer, 28 February 1998
Amnesty International April 1998
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8
Death penalty developments in the USA in 1997
and chest began pulsing, and his jaw clenched. In total, his body made 18 violent
convulsions, followed by eight milder ones. He was pronounced dead 11 minutes after the
injection began. At 22 years old, he was the youngest person executed in the USA since the
death penalty was reinstated in 1976. He had waived his appeals and consented to his
execution.
Consent under cruelty - prisoners who drop their appeals
“Consensual” executions, like that of Carpenter, appear to be a growing phenomenon on
death row in the USA, with at least 50 of those executed since 1977 having given up their
appeals. Amnesty International believes that the execution of prisoners who have chosen to
abandon their appeals does not relieve the state of its responsibility in taking the life of one of
its citizens. Consensual executions are not the product of a prisoner’s freely taken decision
to end their own life, but may be a refusal to face the appalling strains of living under
sentence of death, often in harsh conditions and under almost total isolation. A prisoner
may decide to drop their appeals after recognizing the magnitude of their crime. To kill
someone who is genuinely repentant reinforces the state’s denial, inherent in its resort to the
death penalty, that there is any possibility of rehabilitation for offenders.
Harry Charles Moore was executed on 16 May 1997. He had been sentenced to
death in July 1993 for the murder of his parents-in-law, a crime he said he committed because
he feared they would take his wife and infant daughter to Las Vegas where the child might fall
into a life of drugs and prostitution. Moore chose to abandon his appeals and allow the
State of Oregon to carry out his execution. Although two psychiatrists who examined
Moore determined that he met the legal standard for sanity, reports received by Amnesty
International indicated that he was delusional, claiming to have been a child film star, an FBI
informer and a KGB agent. Moore had reportedly threatened to sue anyone who tried to stop
his execution. His was the second consensual execution in Oregon within 12 months, prior
to
which
there
had
been
no
execution
in
Oregon
since
1962.
Benjamin Stone was executed in Texas on 25 September 1997. He had spent 17
months on death row after being convicted of killing his ex-wife and stepdaughter in a fit of
rage in July 1995. He refused to appeal his death sentence, saying “as far as I’m concerned,
its the only way I’ll find peace of mind”.
At the time of writing, there had already been several “consensual” executions in
1998. Robert Smith was executed on 29 January in Indiana for the murder of a fellow
prisoner in 1995. He pleaded guilty to the murder following a guarantee that he would
receive a death sentence. Prior to this, the District Attorney prosecuting the case had had no
plans to request the death penalty, but had offered him a 50-year prison term in return for a
guilty plea. Ricky Lee Sanderson was executed by cyanide gas in North Carolina on 30
January. He said he had confessed to the crime, and dropped his appeals, after he converted
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Death penalty developments in the USA in 1997
9
to Christianity while in prison. Steven Renfro was executed in Texas on 9 February. He
had been convicted and sentenced to death less than 10 months previously. He had asked
that no appeals be pursued and that his execution be carried out as soon as possible. Michael
Edward Long was executed on 20 February in Oklahoma. He waived the remainder of his
appeals after spending 10 years under sentence of death. Since 1991 death row inmates in
Oklahoma have been housed in the State Penitentiary’s H-Unit. Amnesty International has
described the conditions under which death row prisoners are held in H-Unit as amounting to
"cruel, inhuman or degrading treatment", in violation of international standards.10
THE UNUSUAL WORLDWIDE BECOMING ROUTINE IN THE USA
US society’s belief in the death penalty as an appropriate response to certain violent crimes
remains firm, according to opinion polls, and politicians continue to use capital punishment in
their electoral campaigning as a means of drumming up public support for their cause. For
example, when Al Checchi announced his candidacy for the Governorship of California in
September 1997, he proposed that the death penalty be more strongly enforced and also be
extended to apply to serial rapists and repeat child abusers. A criminal law professor at
Stanford University accused Checchi of engaging in “pure demagoguery”.
A prosecutor seeking the death penalty during a trial in North Carolina in 1997
highlighted the trend towards severe sentencing in the US. The trial of Thomas Richard
Jones is believed to be the first in the USA to have considered imposing a death sentence for
a drink-driving offence. In May, he was convicted of first-degree murder for killing two
19-year-old female students while driving recklessly under the influence of alcohol and
painkillers. The District Attorney sought the death penalty, the jury convicted Jones of
capital murder, but at the sentencing phase he was given life imprisonment without parole.
The sentence is believed to have set a US precedent for a traffic offence.
In 1997, Texas confirmed its status as the principal death penalty state within the
USA when it accounted for half (37) of the executions carried out during the year 11 .
However, other states made moves during the year to renew or reaffirm their use of the death
penalty.
In early 1997, Kentucky reportedly spent $32,600 to upgrade and rewire its electric
chair, in preparation for its resumption of executions after a 35-year gap. Harold McQueen
10
Amnesty International: United States of America: Conditions for death row prisoners in
H-Unit, Oklahoma State Penitentiary. May 1994. AI Index: AMR 51/34/94.
11
The use of the death penalty in Texas remains a cause for very particular concern. For
further information see: Amnesty International: The death penalty in Texas: Lethal Injustice, AI
Index: AMR 51/10/98, March 1998.
Amnesty International April 1998
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10
Death penalty developments in the USA in 1997
was electrocuted on 1 July, the first execution in the state since 1962. The jury which had
sentenced him to death was unaware of mitigating evidence in his case, including evidence of
brain damage.
The execution of Gary Lee Davis on 13 October was the first in Colorado since
1967. In his denial of Davis’ clemency petition, Governor Roy Romer acknowledged that
“there undoubtedly has been some remorse that has grown into his soul, into his heart. And
there undoubtedly has been some rehabilitation of his character and his demeanor." But, the
Governor continued: "I do not believe that whatever remorse or rehabilitation that is
displayed here justifies reaching that extraordinary event that would cause this governor to
give him clemency...” In September, leaders of the 13-denomination Colorado Council of
Churches had met with Governor Romer to appeal for clemency.
1997 saw the first “non-consensual” execution in Maryland in over 36 years when
Flint Gregory Hunt was executed on 2 July. Three years earlier John Thanos had became
the first person to be executed in the state since 1961, after choosing to abandon his legal
appeals.
In August, a jury recommended a death sentence for Gary Kleypas. When the
judge confirmed the sentence on 20 March 1998, Kleypas became the first person sentenced
to death in Kansas since the death penalty was reinstated there in 1994. The last execution
in the state was in 1965. As there is currently no death chamber in Kansas, officials began
making preparations for the construction of one after the jury made its recommendation. A
spokesperson was reported as saying that the Kansas authorities would visit some lethal
injection chambers around the country, and had already talked to their counterparts in Texas
about their experience with carrying out executions.
Individual state moves to reintroduce the death penalty
In Iowa a bill proposing the reintroduction of the death penalty looked set to be debated in the
state legislature in early 1997. However, concern that the punishment could be imminently
reintroduced subsided when the deadline for voting in the state’s House of Representatives
was missed. On 12 February 1998, proponents of the death penalty in Iowa decided to drop
their plans for a full debate because of lack of support. The issue will not be raised again
during 1998. Public hearings were dominated by opponents of the death penalty. The
Governor of Iowa described opposition to the death penalty as “strong and organised” but
stated that reintroduction was “...a matter of time.” The last execution in Iowa was in 1963;
the state abolished the death penalty in 1965.
Fifty years after the last execution in Massachusetts, a bill to reinstate the death
penalty there failed by the narrowest of margins in the state’s House of Representatives. One
representative, John Slattery, changed his mind at the eleventh hour and voted against
reinstatement after talking to constituents about the case of Louise Woodward, a British nanny
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Death penalty developments in the USA in 1997
11
convicted the week before of the murder of an infant in her care. Slattery said that the
conversations had left him with a “deeply unsettling conviction about the possibility of
executing the wrong person”. His change of heart resulted in a tied vote, meaning the bill
was defeated. In the lead-up to November’s vote, one of the bill’s opponents, Attorney
General Scott Harshbarger, had said “There is not a shred of credible evidence that the death
penalty lowers the murder rate. In fact, without the death penalty the murder rate in
Massachusetts is about half the national average. Maybe other states should be learning
something from us.” The last execution in Massachusetts was in 1947.
USA AND THE DEATH PENALTY: INTERNATIONAL CONCERN GROWS
International concern about the application of the death penalty in the USA continues to grow.
1996 had seen the publication of a report on the death penalty in the US by the International
Commission of Jurists (ICJ)12, an independent organization which takes no position on the
death penalty per se. The ICJ concluded that “the administration of the death penalty in the
United States will remain arbitrary, and racially discriminatory, and prospects of a fair
hearing for capital offenders cannot (and will not) be assured” without substantial remedial
steps, such as controlling prosecutorial discretion in seeking a death sentence, ensuring jury
selection is free of race and class bias, and providing adequate legal representation. It went
on to argue that “so long as trial and appellate courts are presided over by judges whose term
of office depends on periodic and partisan elections, the tendency and temptation to respond
to and assuage public opinion will continue to influence the handling of capital cases.
Given that public opinion at present is avowedly in favour of the death penalty, the guarantee
of a trial by an independent tribunal is at risk.” 13
UN Special Rapporteur’s visit to the USA
From 21 September to 8 October 1997, a United Nations team, led by Waly Bacre
Ndiaye, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions,
conducted a mission to the USA to investigate, among other human rights issues, the
country’s use of the death penalty. The Special Rapporteur met with various federal and state
officials, prison authorities, death row inmates, and non-governmental organizations.
Special Rapporteur’s report on his mission to the USA, 1997
12
International Commission of Jurists: Administration of the death penalty in the United
States. Report of a Mission. June 1996
13
For further information on the death penalty as a political tool, see Amnesty International:
USA: Death penalty developments in 1996. March 1997, AI Index: AMR 51/01/97
Amnesty International April 1998
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12
Death penalty developments in the USA in 1997
Despite the fact
that he had been invited The Special Rapporteur reiterated the view of the UN Human Rights
by the US Government, Committee that the reservation on the use of the death penalty against
with the dates of his visit juveniles which the USA made when it ratified the International Covenant
agreed
in
advance, on Civil and Political Rights (ICCPR) is "incompatible with the object
serious difficulties arose and purpose" of the treaty and should be considered void. He concluded
that the US practice of imposing the death penalty on juveniles violates
in the organization of
international law, and that "the reintroduction of the death penalty and the
official meetings. On 18 extension of its scope, both at federal and at state level, contravenes the
September, when none of spirit and purpose of article 6 of the ICCPR." He was also concerned by
the high-level meetings the execution of mentally retarded persons in contravention of
he had requested at the international standards.
federal level had been
The report said that the "lack of adequate counsel and legal
arranged, he wrote to the representation for many capital defendants is disturbing", and observed
UN High Commissioner that the imposition of death sentences in the USA seems to continue to be
for
Human
Rights marked by arbitrariness. He wrote that "race, ethnic origin and economic
expressing concern at the status appear to be key determinants of who will, and who will not, receive
obstacles his mission was a death sentence."
The rapporteur went on to raise doubts about the objectivity of
facing.
the imposition of the death penalty given its politicization in the USA,
During
the "particularly during election campaigns". He also wrote that "the
mission there was some discretionary power of the prosecutor as to whether or not to seek the
hostility from within US death penalty raises serious concern regarding the fairness of its
political circles.
In a administration." The Special Rapporteur acknowledged that polls
letter
to
the
US continue to demonstrate an apparently high level of public support for the
ambassador to the UN, death penalty, but that this "cannot justify the lack of respect for the
dated 6 October, Jesse restrictions and safeguards surrounding its use. In many countries, mob
Helms, chairman of the killings and lynchings enjoy public support as a way to deal with violent
Senate Foreign Relations crime and are often portrayed as ‘popular justice’. Yet they are not
Committee, asked “Is this acceptable in any civilized society."
The report acknowledged the difficult struggle against violent
man confusing the United crime, but suggested that the "inherent cruelty of executions might only
States with some other lead to the perpetuation of a culture of violence" and that alternatives
country, or is this an solutions to the death penalty be sought. He also expressed concern at the
intentional insult to the current approach to victims’ rights, and while agreeing that "victims are
US and our nation’s legal entitled to respect and compassion, access to justice and prompt redress,
system?”
Helms these rights should not be implemented at the expense of those of the
characterized the UN accused. Courts should not become a forum for retaliation."
mission as “a perfect
example of why the United Nations is looked upon with such disdain by the American
people” and urged the ambassador to “reverse all State Department cooperation with this
absurd UN charade.” A spokesperson from Helms’ office, is reported to have said “sounds
like its none of his (Waly Bacre Ndiaye’s) business. And what’s it like on death row in
Senegal, I’d like to know.” This was presumably said because the Special Rapporteur is a
Senegalese national (a fact which is irrelevant to his role as a UN official). It should be noted
that Senegal is abolitionist in practice, having not used the death penalty since 1967.
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Death penalty developments in the USA in 1997
13
On 3 April 1998, the Special Rapporteur released his mission report on the USA
to the UN Commission on Human Rights in Geneva 14 (see box). Among other
recommendations, he urged that the USA establish a moratorium on executions. At the
time of writing the US administration had not commented on the report, but some other
politicians were reported to have voiced their opinions. A spokesman for Jesse Helms
responded: "With all the abuses in places like Burma, China, Cuba and Iraq, to be
wasting time and money to be investigating the freest country in the world shows what a
strange and distant planet the United Nations inhabits." Republic National Committee
Chairman Jim Nicholson called on the "Clinton administration and UN Ambassador Bill
Richardson to clearly and publicly renounce this report." He urged that money owed to
the UN by the USA should not be paid "until the report is formally withdrawn and
apologized for".
No reply to Amnesty International’s letter to federal authorities
On 21 August 1997, Amnesty International wrote to the federal authorities 15 to
reiterate its concern about the arbitrary application of the death penalty in the US and about
measures at federal and state level to restrict appeals While the organization welcomed the
US government’s stated commitment to ensuring competent counsel for those facing the death
penalty, it pointed out that this was inconsistent with its removal of funding in 1996 for the
Post-Conviction Defender Organizations (PCDOs). It gave the example of Exzavious
Gibson, a Georgia death row inmate with an Intelligence Quotient (IQ) of between 76 and 81,
who in late 1996 was forced to go to Augusta Circuit Superior Court for a state habeas corpus
hearing without legal counsel, in clear breach of international standards.
14
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mr
Bacre Waly Ndiaye, submitted pursuant to Commission resolution 1997/61. Addendum: Mission to
the United States of America. E/CN.4/1998/68/Add. 3. 22 January 1998.
15
Amnesty International’s communication was in response to the letter received from the US
government at the end of 1996. See Amnesty International: USA: Death penalty developments in
1996, March 1997, AI Index: AMR 51/01/97
Amnesty International April 1998
AI Index: AMR 51/20/98
14
Death penalty developments in the USA in 1997
Amnesty International reiterated its belief that the death penalty in the USA is
disproportionately imposed on the basis of race16. It noted that President Clinton remained
concerned with issues surrounding race in the USA and had appointed a seven-person
advisory board to look at ways of improving race relations. However Amnesty International
expressed its dismay about a report that the President had stated that the board’s remit would
not extend to racial disparities in death sentences as “the US Supreme Court has made a
decision there, and the overwhelming majorities of all racial groups favor capital
punishment.”
In its letter, Amnesty International expressed extreme concern that President Clinton
should cite public support as a justification for a human rights violation and as an excuse not
to investigate racial disparities in the administration of the death penalty, disparities which
would be in clear violation of the US Constitution.
In 1987 the US Supreme Court went
on record as being willing to tolerate racism. In its majority ruling in McCleskey v Kemp, the
Court stated “...the Baldus study indicates a discrepancy that appears to correlate with race.
Apparent disparities in sentencing are an inevitable part of our criminal justice system.”
(emphasis added). It is
therefore not enough to
rely on the US criminal
justice system to provide
adequate remedy to correct
racism in death penalty
cases.
To date, Amnesty
International has received
no response from the
federal authorities.
The death penalty
in the USA became the
focus
for
worldwide
public concern from late
1997 when Karla Faye Tucker, sentenced to death in 1984, was scheduled for execution in
Texas on 3 February 1998. In early December, in an unprecedented move, the chair of the
Texas Board of Pardons and Paroles interviewed Tucker. However, the Board voted 16-0 to
deny clemency and Governor Bush refused to intervene. Tucker became the first woman to
be executed in the USA since 1984 and the first in Texas since 1863. Among those who had
supported her plea for clemency was the US television evangelist Pat Robertson, a supporter
16
Of the 74 people (41 white, 26 black, four Latinos and two Native Americans) executed in
1997, nearly 84% had been convicted of the murder of a white victim, even though ethnic minorities in
the USA are murder victims in almost equal numbers as whites.
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
15
of the death penalty, who reportedly said “This thing is vengeance, it makes no sense. This is
not the same woman who committed those crimes”. While on death row, Tucker had
educated herself and become deeply religious. She never denied her involvement in the two
murders for which she was convicted, and spoke of her desire to help others learn from her
experience. The execution sparked off a wave of outrage around the world. The UN High
Commissioner for Human Rights, Mary Robinson, said that the increasing use of the death
penalty in the USA was of great concern and ran counter to the world trend towards abolition.
The front pages of many national newspapers around the world were devoted to the
execution.
NON-COMPLIANCE WITH INTERNATIONALLY-AGREED RESTRICTIONS
International human rights standards encourage abolition, but recognizing that the move
towards such a goal worldwide is inevitably gradual and piecemeal, such standards seek to at
least limit the scope of capital punishment for those countries which retain it. Pregnant
women, juvenile offenders (those who commit offences when under the age of 18), the
insane, and the mentally ill or retarded are specifically protected. Of these groups of
defendants, the USA continues to use the death penalty against both juvenile offenders and
the mentally ill or retarded.
Death penalty against juvenile offenders17
Article 6(5) of the International Covenant on Civil and Political Rights (ICCPR) prohibits the
sentencing to death of people who were under 18 years old at the time of the crime.
However, when the USA ratified the ICCPR in 1992, it reserved the right to impose the death
penalty on juvenile offenders. The UN Convention on the Rights of the Child states:
“Neither capital punishment nor life imprisonment without the possibility of parole shall be
imposed for crimes committed by persons below 18 years of age.” The USA remains one of
only two countries not to have ratified this convention (the other is Somalia). Only six
countries have executed child offenders in the 1990s (USA, Iran, Nigeria, Pakistan, Saudi
Arabia and Yemen); the USA accounts for the majority of known juvenile executions (six
since 1990). There are currently over 60 juvenile offenders on death row in the USA.
While no juvenile offenders were executed in the USA during 1997, five such
offenders were sent to death row.
Keith M. Brennan (Florida), Chauncey Jackson
(Virginia) and Marcus Pressley, were sentenced to death for crimes committed when aged
16, and Mark Arthur (Texas) and David Snipes (Florida) received death sentences for
crimes committed when they were 17 years old. At the time of writing, at least two other
17
See Amnesty International: Juveniles and the Death Penalty - Executions Worldwide since
1985. AI Index: ACT 50/02/98, January 1998.
Amnesty International April 1998
AI Index: AMR 51/20/98
16
Death penalty developments in the USA in 1997
juvenile offenders had been sentenced to death in 1998, Randy Arroyo (Texas, aged 17 at
time of crime) and Roderick Ferrell (Florida, aged 17 at crime).
Amnesty International took urgent action on the case of 17-year-old Azikiwe
Kambule, who was facing a possible death sentence in Mississippi for his role in the murder
of social worker Pam McGill. Far from displaying any tendency to adhere to international
restrictions on the use of the death penalty against juveniles, the case showed the lengths to
which a prosecutor was willing to go to obtain a death sentence.
According to reports, Kambule was travelling in a car with Santonio Berry, aged 21,
on 25 January 1997, when Berry spotted Pam McGill in a red sports car and decided to follow
her in order to steal the car. When McGill stopped outside her home Berry forced her at
gunpoint to get back into the car and told Kambule to get in the back seat. He then drove to a
secluded wood, told Kambule to wait, and forced McGill to walk into the woods where he
shot her. Kambule claims that he was unaware that Berry intended to steal a car until it
happened and was also unaware that Berry intended to murder McGill.
As the crime began in Hinds County, but the murder actually took place in Madison
County, either District Attorney could have tried the case. However, the District Attorney for
Hinds County, Ed Peters, requested that the trial take place in Madison County because “The
family [of the victim] from the beginning has expressed a desire that the people charged get
the death penalty and the best way to do that is to send it to another county. The jurors in
Hinds County have a reputation for refusing to vote for the death penalty. Certain judges in
Hinds County have gotten so prejudiced against the prosecution that they won’t even allow
confessions to be entered as evidence.”
The case against Kambule, a South African national, provoked widespread interest in
South Africa, which abolished the death penalty for ordinary crimes in 1995. Quoted in a
South African newspaper in February, Madison County District Attorney John Kitchens said
that he would continue to seek the death penalty, despite appeals for him not to, on the
grounds that it is a deterrent. “It’s just a bunch of these anti-death penalty zealots mouthing
off. I want to see how they would react to their children being murdered. The death penalty
is the only deterrent we have in this country to stop these senseless murders going on.” No
research has ever shown the death penalty to be a uniquely effective deterrent.18
In the event, Berry accepted a plea-bargain from the Madison County District
Attorney of life imprisonment without parole in return for a guilty plea and testimony against
18
According to US Bureau of Justice Statistics, the national US murder rate in 1996 was 7.4
murders per 100,000 of population. The South had the highest rate at 9 per 100,000, yet the southern
states execute by far the largest number of people. The murder rate was 5.4 in the Northeast, the
region with fewest executions. In the District of Columbia, which does not have the death penalty,
homicides reportedly fell by 25% in the first half of 1997 compared with the same period in 1996.
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
17
Kambule. As part of the plea-bargain, Berry also admitted to shooting McGill. The District
Attorney also offered Kambule a plea-bargain of life imprisonment without parole which,
asserting his innocence, Kumbule refused.
In pre-trial proceedings, the judge ruled that the prosecution team could not seek the
death penalty for Kambule when the triggerman, Berry, received a life sentence without
parole after pleading guilty. Despite this ruling, the District Attorney could have continued
with the charge of capital murder in order to gain a sentence of life imprisonment without
parole. Mindful of this, Kambule agreed to plead guilty to aiding and abetting car-jacking
and assisting in the attempt to sell the stolen car in return for the charge of capital murder
being dropped. At the sentencing, Kambule received the maximum sentence of 35 years’
imprisonment.
In a reply to an Amnesty International member who had appealed for the death
sentence not to be sought, the office of the Governor of Mississippi wrote “I realize that this
matter is important to you, but I regret that you are less concerned about the murdered
victim, Pamela McGill, that you are about the man [sic] who was involved in her murder. I
should add - because I doubt Amnesty International told you - that Ms. McGill happened to
be an African-American who spent her life working to improve the lives of the poor in
Mississippi.”
This not only implies that Amnesty International deceives its activists, but
also seems to suggest that the decision as to whether to seek the death penalty in any
particular case should be influenced by references to the victim’s character. The murder of
Pamela McGill, irrespective of her activities when she was alive, was a tragedy; killing those
responsible would compound the brutality.
At the time of writing, Texas had scheduled the execution of two juvenile offenders,
Joseph John Cannon on 22 April, and Robert Anthony Carter on 18 May 1998.
Cannon was sentenced to death for the murder of Anne Walsh in 1977. He was 17
years old at the time of the crime. The jury who sentenced him were unaware of his serious
mental health problems and his profoundly disturbed childhood. One psychologist has
described Cannon's case history as "exceptional" in terms of the brutality and abuse he had
been subjected to as a child. Such was the "depravity and oppressiveness" of his upbringing
that Cannon has thrived better on death row than he ever did in his home environment. He
has learned to read and write on death row.19
Robert Carter, who an Amnesty International delegation met during 1997, was
sentenced in 1982 for the murder of Sylvia Reyes in 1981, when Carter was 17. Due to his
inadequate legal representation, the jury was not invited to consider as mitigating evidence
19
Amnesty International Urgent Action 60/98, AI Index: AMR 51/13/98, 26 February 1998
Amnesty International April 1998
AI Index: AMR 51/20/98
18
Death penalty developments in the USA in 1997
Carter’s age at the time of the crime, the fact that he was mentally retarded, brain damaged,
and had suffered brutal physical abuse as a child.20
Executions of the mentally ill or mentally retarded
United Nations Economic and Social Council (ECOSOC) resolution 1989/64, adopted in May
1989, recommends "eliminating the death penalty for persons suffering from mental
retardation or extremely limited mental competence".
Terry Washington, sentenced to death for the murder of a college student in 1987,
was executed in Texas on 6 May 1997. Psychological testing following his sentencing
indicated that he had the mental age of seven, and in two IQ tests he scored 58 and 69, below
the threshold for significant mental retardation. On appeal, a federal court agreed that he
suffered from organic brain damage attributed to fetal alcoholic syndrome, which was
exacerbated by years of appalling poverty, physical abuse and constant seizures. Terry
Washington’s jury knew none of these facts because his defence failed to present any
mitigating evidence.
Washington’s lawyer made no attempt to explore his client’s mental capabilities or his
background. His trial attorney later conceded that he was unaware of a US Supreme Court
decision that allows funding for defence attorneys to hire mental health experts for conducting
pre-trial examinations. Medical evaluations conducted after Washington’s trial concluded
that he would have been unable to assist in his own defence and that he was totally unaware
of his surroundings during trial.
In a double execution on 19 November in Illinois, Durlyn Eddmonds and Walter
Stewart, were put to death by lethal injection. Durlyn Eddmonds had been sentenced to
death in 1980 for the 1977 murder of nine-year-old Richard Miller. Eddmonds was
diagnosed as schizophrenic in 1973 and strong doubts were expressed regarding his
competence to stand trial between 1977 and 1980, during which time he was diagnosed with
schizophrenia on six occasions. Two psychiatrists concluded that Eddmonds was under the
influence of extreme mental and emotional disturbance at the time of the murder.
Eddmonds’s court-appointed lawyer failed to investigate and present the evidence
concerning Eddmonds’s mental illness at his trial believing that a competency hearing to
determine whether he was fit to stand trial had already taken place.
20
See Amnesty International: United States of America: Robert Anthony Carter: Juvenile
Offender Scheduled to be Executed in Texas. April 1998, AI Index: AMR 51/24/98
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
19
Tony Mackall was executed in Virginia on 10 February 1998, despite evidence that
he was mentally retarded and had suffered head injuries as a child. According to his attorney,
the jury who sentenced him to death were unaware of this mitigating evidence.
INCREASING CONCERN ABOUT FAIRNESS IN CAPITAL CASES
Amnesty International’s concerns about the USA’s failure to meet minimum standards for
trials in capital cases continued in 1997 and were strongly echoed from within the US legal
community, whose members come into close contact with the application of the death penalty
across the country.
“My thirty years’ experience on this court have
On 3 February, the American compelled me to conclude that the imposition of
Bar Association (ABA), which does the death penalty is arbitrary and capricious...I
not oppose the death penalty per se, am not convinced that we have in place adequate
called for an immediate moratorium legal procedures to ensure that capital sentences
on executions in the USA until the are not handed down in violation of the law.
procedures used in capital cases meet Recent changes in our federal habeas corpus
basic principles of fairness and rules have only compounded the difficulty of the
reliability.
The ABA’s resolution federal courts to adjudicate federal claims in
stemmed from its concerns about: 1) capital cases. As a result of this complex legal
inadequate and underfunded legal morass, many persons sentenced to death have
representation, often conducted by legitimate constitutional claims that will never be
lawyers
unfamiliar
with
the addressed on the merits by any court...The
complexity of capital cases; 2) problems are inherent in the enterprise itself.
barriers to appeals lodged on the Because I am confident that no death penalty
grounds that a death sentence violated system can ever be administered in a rational and
the Constitution or federal law. This consistent manner, I do not explore at this time
has been compounded by the recently whether the death penalty itself (in some
enacted restrictions on habeas corpus “perfect” application) violates the Eighth
appeals under the Anti-Terrorism and Amendment’s intrinsic worth of the men and
Effective Death Penalty Act21; and 3) women whom the state puts to death” Eighth
failure to confront the fact that racial Circuit Senior Judge Gerald Heaney, March 1997
bias and poverty continue to play an (Singleton v. Norris).
unacceptable role in determining who
is sentenced to death.
The ABA,
which represents almost 400,000 across the USA, also reiterated its opposition to the
execution of mentally retarded people and juvenile offenders.
21
See Amnesty International: USA: Death Penalty Developments in 1996, AI Index: AMR
51/01/97, March 1997
Amnesty International April 1998
AI Index: AMR 51/20/98
20
Death penalty developments in the USA in 1997
Other US bar associations followed the example set by the ABA and adopted their
own resolutions during 1997. The Chicago Council of Lawyers called for a moratorium on
executions in Illinois, saying that the reliability of the state’s legal system was in doubt given
that seven death row inmates had been found to have been wrongly convicted in the past three
years. The Council drafted a legislative bill providing for a one-year moratorium on
executions.
On 31 October the Pennsylvania Bar Association, which represents 27,000 lawyers,
called for a moratorium on executions “until such time as the fair and impartial administration
of the death penalty can be ensured.” A spokesman at the office of the Attorney General of
Pennsylvania is reported to have responded to the resolution by saying that the Bar
Association was “out of touch with the people of Pennsylvania”. While it is true that US
public opinion, as conducted in polls, is often shown to be strongly in support of the death
penalty, it is unlikely that the US public would show the same support for its arbitrary,
discriminatory and unreliable application.
The Pennsylvania vote was followed on 25 November by the passing of a resolution
by the Philadelphia Bar Association calling for a moratorium on executions in Pennsylvania
“until such time as the fair and impartial administration of the death penalty can be ensured
and the risk that innocent persons may be executed is minimized.” Amnesty International’s
Secretary General, Pierre Sané, in Philadelphia at the time (see above), was present at this
meeting and spoke in favour of the resolution. Pennsylvania has the fourth largest death row
in the USA, with over 200 inmates.
Two senior judges have recently voiced their opinion that alternatives to the death
penalty should be considered purely on the grounds that capital cases are too time-consuming.
At the end of 1997, Superior Court Judge Gordon Battle of North Carolina, retiring after 20
years as a judge, was reported as saying: “We’d be better off if we didn’t have the death
penalty. Our Superior Court spends half its time hearing death penalty cases. It doesn’t
seem worth it.” Florida’s Chief Justice Gerald Kogan, who is not opposed to the death
penalty per se, reportedly said that alternatives to the death penalty in Florida should be
considered as it monopolizes too much of the Supreme Court’s time.
At the end of the year, John J. DiIulio, a professor at Princeton University and a
well-known advocate of a tough approach to crime, wrote: "The death penalty as it has been
administered, is administered, and will likely continue to be administered is arbitrary and
capricious. As a political matter, that’s not likely to change. This who-shall-live lottery is
unjust both as a matter of Judeo-Christian ethics and as a matter of American citizenship.
Since we can’t apply it fairly, we ought to consider abolishing it." 22
22
The Wall Street Journal, 15 December 1997
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
21
CASES IN 1997 ILLUSTRATING CONCERNS IN CAPITAL PROCEEDINGS
“All defendants facing the imposition of capital punishment must benefit from the services
of a competent defence counsel at every stage of the proceedings” 23
A case which received widespread attention in 1997 was that of Alan Jeffrey (“A J”)
Bannister, whose clemency petition stated that he had received "woefully inadequate
defense". His court-appointed attorney, who met with him only three or four times prior to
the trial, did little or no investigation of the facts surrounding the case, and presented
"absolutely no defense" during either the verdict or sentencing phases of the trial. The trial
lasted just three days and the jury convicted him in March 1983 after less than an hour of
deliberation.
Bannister was convicted of the murder-for-hire killing of Darrell Ruestman in August
1982. At the trial, the prosecution's theory was that Bannister was a hired "hit man", which
was not refuted by his attorney. However, investigations conducted since 1991 suggest that
Bannister was not hired to kill Ruestman, but was instead persuaded that the latter wanted to
kill him because of a mix-up over a drugs deal. Bannister visited Ruestman's home and shot
him, allegedly during a struggle.
A J Bannister's subsequent attorneys argued that his execution would be
disproportionate to the nature of the crime, and a clear miscarriage of justice. They urged
Governor Carnahan to order an inquiry to establish the facts of the crime, and to consider the
issue of Bannister’s inadequate legal defence. The police officer responsible for arresting
Bannister issued statements supporting his application for clemency on the grounds that the
punishment of death was not appropriate to the crime, that Bannister was ineffectively
represented at the trial, and that his police colleagues “embellished” statements made by
Bannister after his arrest.
Bannister’s appeal was denied by the 8th Circuit Court of Appeals. However, in a
dissenting opinion Judge Bright stated: “These roadblocks [to allowing Bannister’s appeal] I
emphasize, are procedural and in no way reflect on the merits of Bannister’s claims. If these
23
Extrajudicial, summary or arbitrary executions: Report by the Special Rapporteur.., UN
document No. E/CN.4/1997/60, 24 December 1996, paragraph 81.
Amnesty International April 1998
AI Index: AMR 51/20/98
22
Death penalty developments in the USA in 1997
issues remain unaddressed Missouri may execute a man without offering him a fair trial or
competent legal representation. Because this court cannot address those issues on their
merits, we must rely on other authorities - either the United States Supreme Court or, if not,
the Governor of Missouri - to review the record and address Bannister’s contentions.”
In August Governor Carnahan had stayed the execution of another death row
prisoner, William Boliek, on the grounds that he may have received inadequate legal
representation at his original trial. However no such stay was forthcoming for A J Bannister,
and he was executed by lethal injection on 22 October, despite an international campaign to
save his life. Web sites were posted on the Internet concerning his case and supporters
flooded state officials with letters, faxes, and e-mails from around the world. The State
Attorney General’s office stated that many letters were still pouring in on the day of the
execution, and that the attention that his case had received was unprecedented in Missouri.
Hollywood stars such as Sean Penn, Harry Belafonte, Gregory Peck and Ed Asner, as well as
the police officer who originally arrested him, had all made appeals on his behalf. Asner had
travelled to Missouri’s capital the day before Bannister’s execution to plead on his behalf.
Thomas Thompson, scheduled to be executed in California on 5 August 1997 for
the 1981 rape and murder of Ginger Fleischli, had his death sentence overturned by the 9th
US Circuit Court of Appeal shortly before he was due to die.
On 3 August, the Court voted 7-4 to overturn Thompson’s rape conviction, thereby
rendering the death sentence invalid as it had been based on his conviction for murder during
a felony (rape). In its ruling the Court stated that Thompson’s trial lawyer had provided him
with inadequate defence, and that the prosecution’s use of conflicting theories of the murder
in the separate trials of Thompson and his co-defendant (who was sentenced to 15 years’
imprisonment) violated Thompson’s right to due process of law.
There was a degree of anger against the Court’s decision, illustrating the pressure for
the death penalty in some quarters. The prosecution appealed the decision to the US
Supreme Court stating that it believed the Court’s decision “cuts against the very nature of the
death penalty reforms that were enacted by the Congress and the president a year ago to
prevent these types of successive appeals.” This was a reference to the Anti-terrorism and
Effective Death Penalty Act signed into law by President Clinton in April 1996.
The 9th US Circuit Court’s decision was criticised by California’s governor, Pete
Wilson, who said it was the decision of a “coterie of liberal judges”. California Attorney
General Dan Lungren, in an apparent attempt to influence, via public pressure, the US
Supreme Court’s decision, described the decision as “inexplicable...it sends a message to the
victims that justice delayed is tough luck for you” and said that he hoped the US Supreme
Court would put an end to the “9th Circuit circus”.
Prison officials continued with preparations for Thompson’s execution in case the US
Supreme Court ruled to reinstate the rape conviction. Thompson had said goodbye to visiting
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
23
friends and relatives and was about to be moved to the deathwatch cell on the evening of 4
August, a few hours before his execution, when notification that the US Supreme Court had
upheld the stay came through.
Earlier in the year seven former California prosecutors, all supporters of the death
penalty, issued an Amici Curiae (friends of the court) brief in support of Thompson because
they had doubts about his conviction. They detailed their concerns about the case, including
the many different versions of events presented at different times by the prosecution. The brief
stated: “If certiorari (the appeal) is denied, and Thompson is executed, the message that will
be conveyed is that carrying out death sentences is more important than ensuring that
criminal prosecutions in the name of the People do not involve the manipulation of facts, and
witnesses, and ultimately, the truth, and that defense lawyers competently represent capital
clients so that the jury’s verdicts are a result of a fair and reliable adversarial process. In
addition, should evidence later be uncovered demonstrating Thompson’s innocence or lesser
culpability, it will be tragically too late for justice to prevail.”
“Defendants must be presumed innocent until their guilt has been proved beyond a
reasonable doubt, in strict application of the highest standards for the gathering and
assessment of evidence”. 24
Joseph Stanley Faulder, a Canadian national, and Cesar Fierro, a Mexican national,
scheduled to die in Texas during the year, received indefinite stays late on in the appeal
process.25 In both their cases, the proceedings leading up to their death sentences suggested
that conviction at any cost outweighed the need to maintain the highest standards of evidence
and legal process.
Joseph Faulder’s stay was based on evidence presented by his attorneys that the two
key prosecution witnesses at the original trial lied to the jury, that the prosecution knew they
were lying and that crucial evidence implicating an uncharged accomplice was suppressed.
The trial court has been ordered to hold a hearing to examine the issue of prosecutorial
misconduct in the case. The granting of a stay of execution at such a late stage of the appeal
process is extremely rare.
24
UN Special Rapporteur... See note 23 above
25
The right of consular access for both men was violated by the arresting authorities.
Canadian officials remained unaware of Faulder’s plight for 15 years, and the Mexican authorities
believe that had they been informed of Fierro’s arrest, they could have prevented his forced
confession. See section on "Rights of Foreign Nationals Violated" below.
Amnesty International April 1998
AI Index: AMR 51/20/98
24
Death penalty developments in the USA in 1997
Cesar Fierro received an indefinite stay of execution from the Fifth Circuit Court of
Appeals and was granted a full hearing. It is also extremely rare for US Federal courts to
grant a full hearing for a habeas corpus appeal at such a late stage in the proceedings.
Fierro was sentenced to death in 1980 for the murder of taxi driver Nicolas Castanon
in El Paso a year earlier. Fierro was convicted on the testimony of a juvenile eyewitness,
allegedly mentally-impaired, given some five months after the murder, and his own testimony
which, it later emerged, was obtained under duress by US police.
In 1994, an El Paso district judge had recommended that Cesar Fierro be given a new
trial. In 1996, however, the Texas Court of Criminal Appeals refused to follow the
recommendation after creating a new “harmless error” rule. This enabled the Court to
dismiss the appeal by stating that the police misconduct did not require the conviction to be
overturned.
In an opinion dissenting from the majority, Judge Oversheet stated: “One can have
eyewitness testimonial evidence, circumstantial evidence, scientific evidence, and even
videotaped evidence; but a confession explicitly admitting guilt signed by the defendant is the
most powerful piece of evidence that can ever be introduced against him and will surely serve
as the key that will lock the jail-house door and provide the juice to power the electric chair;
and in these more civilized times, the juice for the needle. Because the majority finds that the
perjurious testimony which paved the way for the erroneous admission of applicant's
involuntary coerced confession was immaterial, i.e. not harmful, I strongly dissent with
principle.”
“...all mitigating factors must be taken into account.”
26
By the time Kenneth Ransom was nine years old, he had
suffered prolonged physical and emotional abuse at the
hands of his mother and brothers. He was taken into care
by the Texan authorities, where the records of the Harris
County Child Welfare agency show that the abuse had
included whippings with electrical cord and hot wires.
Social workers who examined the child noted that the
wounds and burns covered almost his entire body.
When he was 20, Kenneth Ransom was arrested for
his part in the murder of four employees at a Houston
amusement centre during a robbery. At the sentencing
phase of the trial, when the jury would choose between life
and death for the defendant, the jurors were left unaware of
26
UN Special Rapporteur... See note 23 above
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
25
the abuse Ransom suffered as a child. This was despite the fact that his lawyers knew of his
appalling childhood, as one of them had represented his mother when the state removed her
children from her care. One of the lawyers, who has since been suspended from practising
law due to his unprofessional behaviour in another case, presented no mitigating evidence and
made only a brief, rambling statement requesting a life sentence. He opened with an apology
for his lack of personal hygiene: "I'm going to stand a little further back from you than I did
yesterday and the reason for that is I got my water cut off twice yesterday. Figuratively and
literally. I got home yesterday evening and the plumber had come but he couldn't solve the
situation so I didn't have any water last night and I didn't get to take a bath". Kenneth
Ransom was sentenced to death.
On 9 October 1997, Ransom met with an Amnesty International delegation visiting
Ellis-1 Unit where he was being held. He acknowledged his guilt, but not of capital murder:
“When this crime took place, I was at the dumbest point of my life. I wanted to meet with
guys who I thought were cool. I never had a male figure to look up to and associate with.
Now I have advanced beyond that stage... I have so much to offer the world and society....”
He said that he had grown up in poverty, but “I’m not using that as an excuse, but when you
grow up in those surroundings your outlook is bleak. Now I know that even the poorest man
can have the richest inner life. I didn’t know that before. I didn’t know that you could be
rich and poor at the same time.”
Kenneth Ransom was executed by lethal injection on 28 October. The execution
went ahead despite a new statement from the only surviving defendant in the case, James
Randle, who is serving a life sentence, that Ransom had not killed any of the four victims.
Less than a month later, on 20 November, Gary Burris, was executed by lethal
injection in Indiana. Burris had never known the date and place of his birth, but he knew
precisely when and where he would die.
Gary Burris was abandoned as an infant and was raised believing he had been found
in a rubbish bin by a man called Newland, who worked as a pimp. Newland raised Burris in
an environment of crime; they lived above a club, operated by Newland, which was
frequently raided by police for prostitution, the illegal sale of alcohol and drugs and gambling.
Newland involved Burris in many of the illegal activities taking place around the club; these
included being a courier for drugs and alcohol and knocking on prostitutes’ doors when their
clients’ time was up. When Burris was 13, Newland was convicted of manslaughter and sent
to prison. The authorities then placed Burris in a foster home. His foster mother reportedly
remembers that when she asked him once what he wanted for Christmas, he requested a birth
certificate or some information as to who he was.
Burris was sentenced to death in February 1981 for the robbery and murder of taxi
driver Kenneth Chambers. Two other men involved in the crime were sentenced to prison
terms. During his trial, Burris’ attorneys had described him as an “insignificant, snivelly
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26
Death penalty developments in the USA in 1997
little street person” before the jury and failed to present mitigating evidence in support of a
sentence less than death. Finding that this legal representation had been incompetent, the
Indiana Supreme Court reversed the death sentence.
At a new sentencing hearing in 1992, the jury was unable to agree on whether or not
to impose a death sentence; the trial judge chose to impose a death sentence. The Indiana
Attorney General’s office, in its brief to the Indiana Supreme Court, conceded that a sentence
less than death would have been reasonable in Burris’ case. Despite this, the Indiana Supreme
Court confirmed the death sentence.
Gary Burris reportedly had an “outstanding” prison record. He was selected by
Department of Corrections staff to work as a porter, a position awarded to an inmate who is
trusted and liked. In 1986, Burris refused to participate in a hostage incident where other
death row inmates threatened to take the life of a member of the prison staff. He made an
effort to improve himself through reading and obtaining a GED (the equivalent of a high
school diploma). Several Department of Corrections staff testified on Burris’ behalf in support
of a sentence less than death.
Life or death? The question of “future dangerousness”
On 20 October 1997, in its ruling in Brown v. Texas, the US Supreme Court voted by 5-4 to
reject a challenge to a Texas rule that bars the jury from being told when a defendant will be
eligible for parole if given a sentence other than the death penalty. In Texas, a sentencing
jury is asked to take into account a defendant’s “future dangerousness” before deciding
between a sentence of death or life. In the case in question, the defendant, Arthur Brown,
was prevented from telling the jury that a life sentence for him meant 35 years before
becoming eligible for parole. For the dissenting Justices, Justice Stevens wrote that “the
Texas rule unquestionably tips the scales in favor of a death sentence that a fully informed
jury might not impose.” Justice Stevens cited evidence from polls that full information
provided to a jury would affect its sentencing. The data shows that support for the death
penalty decreases when imprisonment of at least 25 years was presented as an alternative.
Joseph O’Dell’s execution in Virginia on 23 July went ahead after the US Supreme
Court denied his appeal on 19 June , also by a 5-4 vote (see section on Risk of Executing the
Innocent below). O’Dell’s appeal argued that he was entitled to a new sentencing hearing
because of instructions to the jury during the sentencing phase of his original trial in 1988.
The prosecution had argued that O’Dell was a “future threat to society” and should therefore
be put to death. However the jurors were kept unaware that O’Dell would be sentenced to
life imprisonment without parole if they spared his life.
In 1994, the US Supreme Court ruled in Simmons v. South Carolina that a defendant
facing a death sentence who had been described as a future threat to society, had a legal right
to have the jury know that he will never get out of prison if the jury spares his life. However
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Amnesty International April 1998
Death penalty developments in the USA in 1997
27
the Court ruled that this decision did not apply retroactively to O’Dell’s case. It invoked its
principle that a “new rule” of constitutional law should not be available to state prison
inmates who are seeking Federal court review through petitions for a writ of habeas corpus.
The Court had adopted that position in a 1989 case, Teague v. Lane, as part of its effort to
make habeas corpus relief less available to state inmates.
In a dissenting opinion, Justice John Paul Stevens said the “right to respond to an
inaccurate or misleading argument [that O’Dell would present a continuing threat to society]
is surely a bedrock procedural element of a full and fair hearing.” The New York Times
described the majority opinion in the O’Dell case as a “cruel absurdity” which placed a
“docket-clearing technicality” above a man’s life.
RIGHTS OF FOREIGN NATIONALS VIOLATED 27
There are more than 60 foreign citizens, representing 22 nationalities, on death row in the
USA. In virtually every case the arresting authorities failed to notify the foreign nationals of
their rights under Article 36 of the Vienna Convention on Consular Relations, a
multilateral treaty ratified by the USA in 1969. Article 36 requires the authorities to
promptly inform arrested foreign nationals of their right to consular assistance . The
cases of two Mexican nationals executed in 1997 illustrates the potentially vital
importance of such intervention and the utter failure of the US authorities to meet their
obligations under international law.
On 18 June 1997, Texas executed Irineo Tristán Montoya, a Mexican national
sentenced to death in 1986. Following his arrest, Montoya had undergone a lengthy
police interrogation without the presence of an attorney or the assistance of the Mexican
Consulate. He then signed a four-page confession written in English, a language that he
did not read, speak or understand. Although only 18-years-old at the time and despite
his secondary involvement in the crime (he was charged as an accessory to the murder),
Montoya was condemned to death. The actual killer received a prison sentence.
The Texas authorities were fully aware of Montoya's nationality but failed to
inform him of his right to consular access. Shortly before the execution, the US State
Department contacted the Governor of Texas, in a belated attempt to determine the
circumstances surrounding the breach of Article 36. However, in a remarkable reply that
showed the Texas authorities’ misunderstanding of, or contempt for, international treaties,
the officials refused to investigate the violation or to assess its possible impact, on the
27
For further information, see Amnesty International: United States of America: Violation of
the Rights of Foreign Nationals Under Sentence of Death, AI Index: AMR 51/01/98, January 1998
Amnesty International April 1998
AI Index: AMR 51/20/98
28
Death penalty developments in the USA in 1997
grounds that Texas was not a signatory to the Vienna Convention. A final appeal to the
US Supreme Court on the treaty violation was dismissed without comment.
Mario Benjamin Murphy was executed in Virginia on 17 September 1997.
Murphy was one of six people charged with the 1991 'murder-for-hire' of a US Navy
petty officer. Murphy cooperated fully with the police and was clearly not the most
culpable individual. He was the only defendant not offered a plea bargain by the
prosecution and the only one sentenced to death. He was also the only foreign national.
Mario Murphy finally learned of his consular rights in 1996; however, both the prison
warden and the Virginia Attorney General refused his request that they contact the Mexican
Consulate on his behalf. A District Court judge later criticised Virginia officials for their
"defiant and continuing disregard" of the Vienna Convention. During a hearing at the Fourth
Circuit Court of Appeal, the Virginia Assistant Attorney General and two of the panel judges
admitted that they had never heard of the Vienna Convention prior to the Murphy case.
The Mexican Consulate filed an amicus curiae brief outlining the "flexible and
far-reaching assistance to avoid imposition of the death penalty" which its officials would
have provided, including efforts to obtain a plea bargain and the gathering of mitigating
evidence. Ignoring the obvious misconduct of state officials, the US courts ruled that the issue
was "procedurally defaulted" because Murphy had failed to raise the claim at an earlier stage.
On 10 September 1997, the Mexican authorities wrote to Governor Allen expressing
their concerns about Murphy’s treatment stating that they had been “unable to discover a
satisfactory reason why our citizen should have been singled out among his codefendants for
the especially harsh penalty of death. Our experience in such matters also leads us to believe
that if our consul had been involved in Mr Murphy’s defense in a timely way...he would not
have received the death penalty.”
In an interview prior to the execution, the trial prosecutor, Robert Humphreys showed
contempt for Virginia’s treaty violation: "I mean, what is the remedy? I suppose Mexico could
declare war on us...To me, it's a completely ridiculous issue". The day after the execution,
the US State Department sent a formal apology to the Mexican Embassy for the failure of
Virginia officials to provide Murphy with the required notification of his right to consular
assistance.
In contrast, as far as its own citizens arrested abroad are concerned, the US State
Department appears to consider Article 36 to be a matter of the highest importance. An
amicus curiae brief in early 1998 for a Paraguayan national28 scheduled for execution in
28
For further information, see: Amnesty International: United States of America: Angel
Francisco Breard: Facing death in a foreign land. March 1998. AI Index: AMR 51/14/98
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
29
Virginia on 14 April 1998, notes that the US State Department has on several occasions
taken action in response to other nations’ failure to comply with Article 36 or other treaty
provisions pertaining to consular notification. For example, in chastising the Syrian
government for failing to notify the US embassy in Damascus of two US nationals, the US
State Department noted: “The right of governments, through their consular officials, to be
informed promptly of the detention of their nationals in foreign states, and to be allowed
prompt access to those nationals, is well established in the practice of civilized nations...
Detained foreign nationals are inevitably distressed by the prospect of securing and
preserving their rights in a legal system with whose institutions and rules they are not
familiar . . . . The consul, while fully complying with the law of the detaining state, is able
to assist these nationals in securing and preserving their rights, often by helping them to
obtain local counsel...”
EXTRADITION IN CAPITAL CASES
As in the case of violations of the Vienna Convention, requests for extradition in potentially
capital cases can also lead to tensions between retentionist and abolitionist states.
On 30 June 1997, in the case of United States of America v. Burns and Rafay, the
British Columbia Court of Appeal overruled the decision of the Canadian Minister of Justice
to allow extradition of two Canadian nationals facing a capital trial in the USA, without
seeking an assurance that the death penalty would not be imposed. Glen Burns and Atif
Rafay have been charged with a brutal triple murder in the US in 1994, when they were both
18. However, writing for the majority opinion, Justice Donald said that their extradition
would violate section 6(1) of the Canadian Charter of Rights and Freedoms, which states:
“Every citizen of Canada has the right to enter, remain in and leave Canada.” According to
Justice Donald, extradition of Burns and Rafay followed by their execution would clearly
violate this right upon completion of their sentence (as they would be dead), in a way that
extradition for non-capital offences would not.
Article VI of the Extradition Treaty between Canada and the USA, which provides
for the refusal of an extradition request in the absence of sufficient assurances concerning the
death penalty, was inserted into the treaty at the request of the US authorities. At the time,
1974, the death penalty had been de facto abolished by the US Supreme Court, while Canada
still retained the punishment. Since then (1976), Canada has abolished the death penalty
whereas the US has returned to its use. It is a sad irony that the original purpose of Article
VI was to protect US citizens from the death penalty in Canada.
In October 1997 it was reported that the Mexican authorities had decided not to
extradite a US national charged with the killings of four people in California in 1996, but
would prosecute him themselves.
Mexico has a treaty with the USA that bans the
Amnesty International April 1998
AI Index: AMR 51/20/98
30
Death penalty developments in the USA in 1997
extradition of suspects who could face the death penalty if returned29. Mexican officials had
said that they would only extradite David Alvarez if they received assurances that the death
penalty would not be sought. The prosecuting District Attorney in Los Angeles reportedly
refused to provide such assurances.
29
Mexico, abolitionist for ordinary crimes, has not carried out an execution for over 60
years.
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
31
THE RISK OF EXECUTING THE INNOCENT
“The appeals process in America is so lengthy that it is almost 99.999% impossible to
execute an innocent person” 30
“Despite the high court’s 1972 charge to the states to overhaul their death penalty laws to
make them fairer and less arbitrary, innocent people are still being sentenced to death” 31
For many people, whether in favour of In July the Death Penalty Information Center
capital punishment or not, one of the Bill
(DPIC)
McCollum,
in Washington
Republican
issued
head
a report
of the which
House of
factors most disturbing about the death Representatives’
examined “the dramatic
Judiciary narrowing
Committee,ofwas
the
penalty is the risk of this most reported
opportunity
as responding
to appealthat
and“justice
to raiseisnewly
not perfect”,
irrevocable of punishments being but
discovered
that the margin
evidence
of error
of one’s
suggested
innocence.
by theThe
DPIC
inflicted on the wrongly convicted. report
federal
(about
funding
1%)for
represented
the death an
penalty
acceptable
resource
level
Because of this risk, international ofcenters,
risk. which helped discover and vindicate
standards are unequivocal in their several of the innocent people cited in this
insistence on the highest quality of report, has been completely withdrawn. Some
judicial proceedings in capital cases. courts have now taken the position that it is
However, with the poor quality of legal permissible for executions to go forward even in
representation
for
many
capital the face of considerable doubt about the
defendants, illustrated by many of the defendant’s guilt. The current emphasis on
cases above, and with the use of the faster executions, less resources for the defense,
death penalty continuing to be expanded and an expansion in the number of death cases
in the US, and the appeals process mean that the execution of innocent people is
restricted, fears are growing that more inevitable.”
people will be sentenced to death and
executed for crimes they did not commit.
In July 1997 the Death Penalty Information Center published a report 32 detailing how, of the
69 wrongly convicted people released from death row in the USA since 1973, 17 have been
released since 1993 alone (see box).
Thirty-five-year-old Mexican national Ricardo Aldape Guerra, who was on death
row in Texas for nearly 14 years, and who came within three hours of execution in 1992, was.
released in April 1997. He had been convicted in October 1982 of shooting a police officer
during a routine traffic stop in July of that year. He was sentenced to death, but maintained
his innocence of the murder charge, saying that another man in his car, who was later that day
30
Representative Jack Critcher, State of Arkansas House of Representatives, in a letter to an
Amnesty International member, dated 26 August 1997.
31
Benjamin Civiletti, former Attorney General of the United States, in “The death penalty
system is still seriously flawed”, The Christian Science Monitor, 1 August 1997.
32
Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent.
July 1997, Death Penalty Information Center, 1320 18th St. NW, 5th Fl., Washington, DC 20036
Amnesty International April 1998
AI Index: AMR 51/20/98
32
Death penalty developments in the USA in 1997
killed in a shoot-out with police, had shot the officer. In 1994 a US District Judge threw out
the conviction and ordered a new trial because of police and prosecutorial misconduct. The
judge stated that police and prosecutors had intimidated witnesses into accusing Aldape
Guerra and had manipulated evidence to ensure a conviction. His ruling was upheld in
August 1996 by the US Fifth Circuit Court of Appeals and Aldape Guerra was moved from
death row in Huntsville to Harris County Jail to await a new trial.
However, when at
pre-trial hearings the trial judge ruled that six key prosecution witnesses could not testify
because their testimony had been influenced by police, and said that there was “overwhelming
evidence” that Adalpe Guerra was not the gunman, the Harris Country District Attorney
dropped the prosecution.
Guerra’s case had become a cause celebre in Mexico, and the Mexican government
had intervened directly on his behalf. After his release Guerra returned to his home in
Monterrey, Mexico, but in a tragic turn of events, he was killed in a car accident in August
1997.
On 2 October 1997 Randall Padgett was found not guilty by a court in Marshall
County, Alabama, and released. He had been sentenced to death in 1992 for the rape and
murder of his estranged wife. He spent the next three years on death row, before winning an
appeal in 1995 against his conviction and the right to a new trial.
On 11 November 1997 in Texas, Kerry Max Cook was released on bail pending his
fourth trial. Cook was convicted in 1978 for the murder of Linda Jo Edwards in 1977, and in
1988 he came within 11 days of execution. In 1991 his conviction was overturned. His
second trial in 1992 ended in a hung jury. In 1993, a state district judge ruled that
prosecutors had suppressed key evidence. At his third trial in 1994, he was again sentenced
to death.
On 6 November 1996, the Texas Court of Criminal Appeals reversed his
conviction, saying that “prosecutorial and police misconduct has tainted this entire matter
from the outset.”
Joseph Roger O’Dell was executed in Virginia on 23 July 1997, despite doubts over
his guilt. O'Dell had been sentenced to death in November 1986 for the murder of Helen
Schartner, who was raped and murdered after leaving a nightclub on 4 February 1985.
O'Dell was convicted on the testimony of a prosecution witness who later signed an
affidavit saying he lied when he testified at trial that O'Dell had confessed the murder to him
in jail. The prosecution witness reportedly made his statement about O'Dell's confession
because he thought he himself was facing possible life imprisonment for breaking and
entering and arson and thought he might be able to make a deal for a lighter sentence. The
witness was reported as saying "I don't want an innocent man's death on my shoulders...I feel
better now, I feel relieved. I knew I didn't have to lie anymore".
Results of later DNA tests on blood found on O'Dell's clothes contradicted serology
tests carried out by the prosecution at trial which linked O'Dell to the crime. About an hour
before O’Dell’s execution, the Supreme Court turned down an appeal by his lawyers to stay
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
33
the execution by refusing to allow new DNA tests. A few days before, the European
Parliament had adopted a resolution calling on the Virginia authorities to allow such tests.
Governor Allen was said to have received appeals for clemency from a wide range of
non-governmental organizations and government authorities. The UN Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, who in 1996 had noted reports that O’Dell
had “extraordinary proof of innocence which could not be considered because the law of the
State of Virginia does not allow new evidence into court 21 days after conviction”, sent a
special appeal for clemency, as did Pope John Paul II and Mother Teresa, among others.
At the time of writing there had been two more releases in 1998. Robert Lee Miller
Jr. was released from prison in Oklahoma on 22 January. He had been on death row from
1988 to 1995. In February 1997, an Oklahoma judge dismissed the murder charges against
him saying there was not enough evidence to justify his continued imprisonment. However
the prosecution appealed the ruling and Miller remained in prison. Miller was convicted in
1988 of the rape and murder of two elderly women after his blood type had been found to
match evidence at the scene of the crime. However, subsequent DNA tests proved there was
no match, and incriminated another man, Ronald Lott, already imprisoned on similar charges.
Miller’s original conviction was overturned in 1995, and he was granted a new trial. Lott
has now been charged with the crime.
Curtis Kyles was released from death row in Louisiana in February after the state
dropped all charges against him. He had been in prison for 14 years and came within 36
hours of execution in November 1988, and within seven days in November 1990. In total he
was subjected to five capital trials, four of which had resulted in hung juries. The one trial,
his second, which had resulted in a conviction and the death sentence lasted two days. After
he had lost all his appeals to state courts, he presented a federal habeas corpus petition, and
on 19 April 1995 the US Supreme Court ruled by a vote of 5-4 that the verdict was unsafe as
the prosecution had withheld crucial evidence about the unreliability of eyewitness testimony
and important information about a paid informant who may have been the actual murderer.
The conviction was reversed and Kyles was remanded for his third trial. This was held 17
months after the Supreme Court decision and resulted in a hung jury (10-2 for acquittal).
After his next two trials resulted in hung juries also, the state dropped the charges.
According to the Death Penalty Information Center, Curtis Kyles is the 75th person to
be cleared of charges and released from death row since the death penalty was reinstated.
Some politicians say that such releases are the sign of a justice system working. In 1997, a
spokesman for Governor Edgar of Illinois said this when he urged the public not to be
alarmed by the fact that seven death row inmates in Illinois had been found to have been
wrongly convicted in the past three years. In doing so he seemed to be implying that it is
acceptable for a justice system to force a human being to endure for years the knowledge that
one day the state will take his or her life as punishment for an offence they did not commit.
Amnesty International believes that to place anyone under sentence of death constitutes cruel,
inhuman and degrading treatment. In the case of two of the death row prisoners freed in
Amnesty International April 1998
AI Index: AMR 51/20/98
34
Death penalty developments in the USA in 1997
Illinois in 1996, luck seems to have played more a role in their release than a well functioning
justice system. Much of the investigative work which led to their release was carried out by
three journalism students who happened to work on their case as a project on possible
miscarriages of justice.
WHAT THE PUBLIC WANT?
33
“I must carry out the will of the people...” Governor Patton of Kentucky
Support for the death penalty, in any country, can be born of anger and fear - anger at violent
crime, fear of the social chaos such crimes seem to point to, and fear for one’s own safety and
the safety of others. Promises by politicians to adopt or expand the death penalty may seem
to offer a palliative to these emotions and as a result some lawmakers may become unwilling
to offer the leadership necessary to explore alternative responses to violent crime. But it
should be possible to draw courage from the experience of those countries which have
abandoned the death penalty and discovered that such a move does not result in a descent into
social disorder.
In the USA, according to opinion polls, support for the death penalty remains solid
and is often used by politicians to justify its retention. For example, in a letter to an
Amnesty International member, dated 1 July 1997, Senator Mike Everett of the Arkansas
Senate wrote: “77% of Arkansas people favor it [the death penalty]. That is enough said. If
77% of Arkansas people want it, they will have it.”
It is now 40 years since the US Supreme Court stated that the “evolving standards of
decency” in US society must determine the meaning of “cruel and unusual punishments”.
This raises the question of how much more time will pass before this phrase is interpreted to
outlaw in the USA what much of the world has come to see as an unacceptable form of
punishment.
In his letter to the Amnesty International member, Senator Everett of Arkansas, gave
one view when he wrote: “What is moral and what is legal is often a matter of perspective.
Nations, like humans, evolve. America is not so far removed from the frontier as Austria
[where the AI member he was writing to lives]. Your country is much older, its culture more
developed, more ethnically and socially unified, further from its history of uncivilization, than
ours. From our perspective, the death penalty is both moral and legal. From your
perspective, it is not. The day will come when our acceptance of the death penalty will
change, but it is still decades, and probably centuries, away. Our attitude toward the death
33
From the death warrant for Harold McQueen signed by Governor Patton on 11 June 1997.
McQueen’s subsequent execution on 1 July was the first in Kentucky for 35 years.
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
35
penalty will change when our attitudes toward gun control, racial differences, religion,
poverty, and other fundamental values, change.”
"Decades" or "centuries" is too long to wait for the abolition of the death penalty.
The world has already seen 50 years pass since the adoption of the Universal Declaration of
Human Rights, at the heart of which is the vision of a world where every person has the right
to life and freedom from cruelty. Abolition of the death penalty was promoted during the
drafting of the Universal Declaration34 and subsequent international human rights standards
have sought to progressively restrict its scope with a view to abolition.
"It was fitting" proclaimed President Clinton on the occasion of Human Rights Day
1997, "that a great American, Eleanor Roosevelt, played a pivotal role in the development of
the Universal Declaration of Human Rights... As Chair of the U.N. Commission on Human
Rights, she led the efforts of its 18 members to define basic rights and freedoms and to draft
the international affirmation of rights that was ultimately adopted by the General Assembly".
Amnesty International believes that five decades on, the increasing use of the death penalty
in the USA contravenes the pioneering spirit of those who drew up the Universal Declaration.
Also in December 1997, President Clinton said, "And in this 50th anniversary year,
Amnesty International has asked world leaders to affirm that we will do all we can to uphold
the principles of the Universal Declaration. I make that pledge today."
The death penalty violates fundamental human rights. It is time for the United
States of America to consign it to history.
34
Death penalty scholar, William Schabas, writes: "The models on which the Declaration
were based all recognized the death penalty as an explicit exception to the right to life. The
Universal Declaration went one step further, removing any reference to the death penalty essentially
because, in the words of Eleanor Roosevelt, there was a movement underway in some States to
abolish capital punishment... There was even an attempt [in the debate over the meaning of right to
life] to make the declaration overtly abolitionist. But in the end prudence dictated a less precise
statement... In this way it accurately served the purpose of the Declaration, which was to be a
manifesto whose scope could evolve over time..." Schabas goes on to draw the "inescapable
conclusion" that "article 3 of the Universal Declaration is indeed abolitionist in outlook." pp.
42-44 William A. Schabas, Abolition of the Death Penalty in International Law, Second Edition,
Cambridge University Press, 1997
Amnesty International April 1998
AI Index: AMR 51/20/98
36
Death penalty developments in the USA in 1997
SELECTED STATISTICS (up to end of 1997 unless stated)
35
Total executions since the resumption of executions in 1977
77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97
1 0
2
0
1
2
5
21 18 18 25 11 16 23 14 31 38 31 56 45 74
RACE OF DEFENDANTS EXECUTED
White
Black
Latino
Native American
Asian
TOTAL NUMBER: 432
242 (56.02%)
161 (37.27%)
23 (5.32%)
4 (.93%)
2 (.46%)
RACE OF VICTIMS
White
Black
Latino
Asian
TOTAL NUMBER: 583
482 (82.68%)
72 (12.35%)
20 (3.43%)
9 (1.54%)
EXECUTION BY STATE
1. Texas
2. Virginia
3. Florida
4. Missouri
5. Louisiana
6. Georgia
7. Alabama
8. Arkansas
9. South Carolina
10. Illinois
11. Oklahoma
12. Delaware
13. North Carolina
14. Arizona
15. Nevada
144
46
39
29
24
22
16
16
13
10
9
8
8
6
6
16. Utah
17. Mississippi
18. California
19. Indiana
20. Nebraska
21. Washington
22. Pennsylvania
23. Maryland
24. Oregon
25. Idaho
26. Wyoming
27. Montana
28. Colorado
29. Kentucky
5
4
4
5
3
2
2
2
2
1
1
1
1
1
EXECUTIONS BY METHODS USED
Lethal injection
287
Hanging
3
Electrocution
131
Firing Squad
2
Gas Chamber
9
JURISDICTIONS WITH DEATH PENALTY STATUTES: 38 STATES AND 2 FEDERAL
35
Source: Legal Defence and Education Fund, New York
AI Index: AMR 51/20/98
Amnesty International April 1998
Death penalty developments in the USA in 1997
37
Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho,
Illinios, Indiana, Kansas (first death sentence confirmed 3/98), Kentucky, Louisiana, Maryland,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New
York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Virginia, Washington, Wyoming, US Government, US Military.
(underlined states have death penalty statutes but no death sentences imposed)
JURISDICTIONS WITHOUT CAPITAL PUNISHMENT: 12 STATES AND 1 FEDERAL
Alaska, District of Columbia (Federal), Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota,
North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin.
JUVENILE OFFENDERS EXECUTED SINCE 1977
Charles Rumbaugh (Texas, 11/9/85)
James Terry Roach (South Carolina, 10/1/86)
Jay Pinkerton (Texas, 15/5/86)
Dalton Prejean (Louisiana, 18/5/90)
Johnny Frank Garrett (Texas, 11/2/92)
JUVENILE OFFENDERS ON DEATH ROW:
TOTAL NUMBER: 9
Curtis Harris (Texas, 1/7/93)
Frederick Lashley (Missouri, 28/7/93)
Ruben Cantu (Texas, 24/8/93)
Christopher Burger (Georgia, 7/12/93)
(all were aged 17 at the time of the offence)
62 in 15 states (as of 30 June 1997)36
Alabama (7); Arizona (2); Arkansas (1); Florida (6); Georgia (2); Kentucky (1); Louisiana (1);
Mississippi (4); Missouri (3); Nevada (1); Oklahoma (1); Pennsylvania (2); South Carolina (2);
Texas (25); Virginia (4).
DEFENDANT-VICTIM RACIAL COMBINATIONS
White defendant and:
White victim
Black victim
Asian victim
Latino victim
337 (57.80%)
7 (1.20%)
2 (0.34%)
8 (1.37%)
Black defendant and
White victim
Black victim
Asian victim
Latino victim
130 (22.30%)
63 (10.81%)
23 (.52%)
2 (.34%)
36
Source: The Juvenile death penalty today: Present death row inmates under juvenile death
sentences and death sentences and executions for juvenile crimes, January 1, 1973, to June 30, 1997
by Victor L. Streib, Dean and Professor of Law, Ohio Northern University. 18 August 1997
Amnesty International April 1998
AI Index: AMR 51/20/98